Dove Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 30, 1964

145 N.L.R.B. 1379 (N.L.R.B. 1964)

DOVE MANUFACTURING COMPANY 1379
and WE WILL NOT solicit employees to advise management that they were
rejecting the above-named or any other labor organization
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective-bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right is affected by the provisos in Section 8(a)(3) of the Act
UNIVERSAL MANUFACTURING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, T 6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone
No. 529-2411, Extension 2131, if they have any question concerning this notice
,or compliance with its provisions.
Mark J. Gerry, Inc., d/b/a Dove Manufacturing Company, Re-
spondent and Los Angeles Dress and Sportswear Joint Board,
International Ladies ' Garment Workers' Union , AFL-CIO,
Charging Union and Employees' Group Union , Party to the
Contract
Mark J. Gerry , Inc., d /b/a Dove Manufacturing Company, Em-
ployer and Los Angeles Dress & Sportswear Joint Board, a
Subordinate Body of the International Ladies ' Garment Work-
ers' Union , AFL-CIO, and Local 986, affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Joint Petitioners. Cases
Nos. 21-CA-5008-1, 21-CA-5008-62, 31-CA-5125, and 21-IBC-7890.
January 30, 1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On June 24, 1063, Trial Examiner David F. Doyle issued his Inter-
=mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner further found that certain conduct
of the Respondent was grounds for setting aside the October 2, 1962,
election in the representation case. Thereafter, the Respondent filed
,exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
145 NLRB No. 128.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing herein, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the clarification noted herein.
We agree with the Trial Examiner that the Respondent contributed
unlawful aid, support, and assistance to the Employees' Group Union
in violation of Section 8(a) (2) and (1), and by such unlawful con-
duct as preceded the election, also interfered with that election. That
the Respondent unlawfully assisted the Employees' Group Union
before the election is most strongly evidenced by privileges accorded
to it and denied to the Petitioner. By this disparate treatment the
Respondent overstepped the neutrality position required by law.
Other strong evidence of the Respondent's unlawful assistance to the
Employees' Group Union is found in the Christmas bonus bulletin
which, among other things, stated : "This is just one of the many
benefits that is provided by the Employees' Group Union contract and,
which no other union can give to you, of which is to your advantage."
This statement was a clear warning to the employees that no union
other than the Employes' Group Union could obtain certain benefits
for them. To tell employees that one and only one labor organization
can secure benefits for them is an obvious violation of Section 8 (a) (2)
and (1).
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
[Text of Direction of Second Election omitted from publication.]
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in these cases and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Mark J. Gerry , Inc., d /b/a Dove Manufacturing Company, its
officers , agents , successors , and assigns , shall:
The Appendix attached to the Intermediate Report is hereby amended by adding the
following immediately below the signature line in the notice:
NOTE-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of her right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER AND
REPORT ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
These proceedings, involving the above-named consolidated cases, came on regu-
larly to be heard by Trial Examiner David F. Doyle at Los Angeles, California, on
DOVE MANUFACTURING COMPANY 1381
March 19 through 21, 1963, upon a consolidated complaint of the General Counsel
and answer of the above -named Respondent and objections to the conduct of elec-
tion filed by Joint Petitioners . The issues litigated were whether the Respondent:
(1) had committed unfair labor practices in violation of Section 8(a)(1), (2),
and (3 ) of the Act , and (2 ) had indulged in certain conduct which the Joint
Petitioners claimed constituted valid objections to an election conducted by the
Board on October 2, 1962, in Case No. 21-RC-7890. At the hearing the parties
were represented by counsel . All parties were afforded full opportunity to present
evidence , to examine and cross-examine witnesses , and to present oral arguments
on the issues.'
Upon the entire record, and from my observation of the witnesses , I hereby
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company is engaged in the manufacture of women's clothing in the city of
Los Angeles , California . During the past year , in the course and conduct of its
business operations , it shipped products valued in excess of $50 , 000 directly to
customers outside the State of California . It is not disputed , and I find, that the
Company is an employer engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act , and that the assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATIONS INVOLVED
Upon the pleadings and the Decision of the Board in Mark J. Gerry, Inc., d/b/a
Dove Manufacturing Company, 128 NLRB 778, of which I take official notice, it
is found that the Charging Union and Group Union are both labor organizations
within the meaning of Section 2 ( 5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES ; THE OBJECTIONS TO THE ELECTION
The Issues
The consolidated complaint , in considerable detail , alleged that the Company
violated the Act by the following conduct : ( 1) Interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1); (2) rendered unlawful
assistance and support to the Group Union in violation of Section 8(a) (2); and
(3) discriminatorily discharged employee Ozie Perkins on October 26 in violation
of Section 8 (a) (3) .
The Company denied the allegations of unfair labor practices and, as to Perkins,
alleged that she was discharged for cause , namely, tardiness , absenteeism, and
insubordination.
In a letter filed with the Board on October 4, counsel for the Charging Union
listed 14 specific objections to the conduct of election which was held on October 2.
By order of the Regional Director , these objections were also referred to the Trial
Examiner for hearing , findings of fact , and recommendation as to the disposition
of the objections . The Respondent denied that it committed some of the conduct
alleged in the objections . As to certain other conduct , while admitting that it had
occurred, the Respondent claimed that its conduct was a lawful exercise of its
right of free speech under Section 8 (c) of the Act and the United States Constitution.
There occurs some duplication in the pleadings because some of the conduct, al-
leged to be the basis of objection to the election , is also alleged to be the specified
unfair labor practices . In this report the factual situation will be treated first,
and then the Trial Examiner will set forth his findings on the two types of issues.
1 In this report , Mark 3 Gerry , Inc, d /b/a Dove Manufacturing Company , is referred
to as the Company or the Respondent ; Los Angeles Dress and Sportswear Joint Board,
International Ladies ' Garment Workers ' Union, AFL- CIO, as the Union or the Charging
Union ; Employees ' Group Union , Party to the Contract , as the Group Union ; the General
Counsel of the National Labor Relations Board and his representative at the hearing, as
the General Counsel ; the National Labor Relations Board, as the Board , and the Labor
Management Relations Act, as amended, as the Act.
The original charge herein was filed on October 31 , 1962 , and the original complaint
was Issued on December 13, 1962 ; thereafter there were additional charges filed and a
consolidated amended complaint herein was issued on February 2, 1963.
All dates in this report are in 1962 except as otherwise specified.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Background of the Present Controversy
The present proceeding is the second proceeding involving the Group Union, the'
Union, and the Respondent. The first proceeding resulted in a Decision and
Direction of Election of the Board dated August 23, 1960.2 Therein the Board found
that the Group Union was a labor organization as defined in the Act. It noted that
the Group Union had no constitution or bylaws, and no officers, and required no dues
of its members. But the Board also found that the employees participated in its
activities, and that it existed for the purpose of dealing with the employer concerning
wages, hours of employment, and other conditions of work. The Decision and
Direction of Election also defined an appropriate unit of employees. Pursuant to a
stipulation of the parties, it classified the "floorman" and "floorlady" as supervisors
and the "floorgirls" as rank-and-file employees. The Decision directed an election,
with the Group Union and the Union participating It is undisputed that the Group
Union won the election and on September 30, 1960, executed a collective-bargaining
agreement with the Respondent which was to extend for a period of 2 years, and
thereafter from year to year, absent notice of termination given by either party 60
days prior to the terminal date. It is likewise undisputed that neither the Group
Union nor the Respondent gave such notice of termination.
The Present Proceeding
Thereafter, the Group Union and the Company were undisturbed by the Uniori
until July 19, when the Union filed a new petition seeking certification as repre-
sentatives in Case No. 21-RC-7890.
The Regional Office conducted the usual investigation and on September 6 the
Regional Director of the Board for the Twenty-first Region filed his Decision and
Direction of Election in the case. In that Decision and Direction of Election, the
Regional Director reaffirmed the definition of the appropriate unit of employees,
and found that the petition was timely filed, that the contract was not a bar, and
directed that an election by secret ballot be conducted by the Board.
The election was held on October 2, 1962, and the tally of ballots in the proceeding
showed that there were 84 eligible voters; 30 votes were cast for the Union; 32 votes
for the Group Union; 5 votes cast against both labor organizations; and 3 challenged
ballots. Since neither labor organization had received a majority of the valid
votes, the Regional Director found that a runoff election was required.
However, prior to the election and immediately thereafter, certain events had taken
place which the Union claimed constituted unfair labor practices on the part of
the Company, and also valid objections to the conduct of the election. It is these
charges and the various objections which are the basis of the instant proceeding.
The Testimony
There are few conflicts in the testimony of the witnesses. Some conflicts which
occur are discrepancies or differences within the testimony of the same witness
or group of witnesses, who were subjected to direct and cross-examination. Most of
the conduct of which the General Counsel and the Union complain occurred within
the confines of the Company's plant and was thus known firsthand only to rep-
resentatives of the Company, the Group Union, and to certain employees. This
posture of the case required that the General Counsel and counsel for the Union pro-
ceed by an examination of witnesses whom they considered adverse. From the testi-
mony of these witnesses , a fairly clear picture of the events, with which we are here
concerned , emerges, but this picture is not as clear and complete in some respects
as might be desired.
The Status of Lydia Mullen
The Decision of the Board, previously mentioned, and the Decision of the
Regional Director in the instant proceeding excluded from the appropriate unit
the floorman and the floorlady as supervisors, but both decisions included in the
unit "floorgiris." At the hearing, counsel for the parties stipulated that Burton M.
Koch was production manager for the Company and that Elna Herrman was the
floorlady, and that both were supervisors within the meaning of the Act. The
Union claimed that, in addition to these, Lydia Mullen, who had the title of floorgirl,
was also a supervisor within the meaning of the Act, and since one of the objections
2 Mark J. Gerry, Inc., d /b/a Dove Manufacturing Company, 128 NLRB 778.
DOVE MANUFACTURING COMPANY 1383
to the conduct of election was based on the participation of Mullen in certain events
prior to the election, the status of Mullen as a supervisor or employee came into
issue. Practically all of the testimony on this point was given by the two above-
named supervisors, Koch and Herrman, while being examined by the General
Counsel and counsel for the Union.
In the course of his testimony, Koch said that Mullen had the title of floorgirl.
He said that "She works under Mrs. Herrman or myself and she basically does the
same thing that Mrs. Herrman does, except for the fact that she is not a supervisor."
In describing Herrman's duties, Koch testified that as floorlady, Herrman had the
right to hire and fire but that she rarely exercised that authority because he had
assumed that responsibility. He said that Herrman had the duty to see that produc-
tion was maintained and to check with him on anything that might need straightening
out. As to the duties of Mullen, Koch said that her duties "were to work with Elna
[Herrman], under her, and to make sure that the new operators that we got in these
positions knew what they were doing; knew how to sew the garments right. She
had to move bundles, she had to direct the flow of production through that depart-
ment, and she had to answer to us on how many dozens were being produced that
particular day and whether the other-whether the girls were producing satisfactor-
ily." In describing the chain of command, Koch said that he was production man-
ager and that Herrman was directly under him and that Mullen was directly under
Herrman.
Koch said that Mullen had no authority to hire or fire or to bawl a girl out.
It was her duty to keep the bundles of garments moving, do a little training, and
see that everything ran smoothly. If something unusual occurred, it was Mullen's,
duty to report to Herrman or himself and they put their heads together as to what to-
do. Koch said that if one of the operators was not performing her work properly,
it was the duty of Mullen to bring that to his attention. Mullen also had authority
to take up with him various requests of the girls concerning the performance of
their duties. Koch said that with respect to the quality of an employee's work, he
consulted with Mullen and usually accepted her recommendation as to whether
the employee was a good operator or not. In describing the operations of the plant,
Koch testified that he was in charge of all production with the assistance of Herrman
and that Mullen worked under Herrman, usually in some area of the plant, specifically
assigned to her. In her work Mullen was assisted by three girls: One moved the
bundles of garments to the sewing staff as directed by Mullen; a second girl had'
little direction from Mullen, for it was her sole duty to see that finished garments.
were pressed properly; a third girl did some trimming and turning of garments.
Mullen and her three assistants were paid on an hourly basis, while all other girls
were paid at piece rates.
While the matter is not free of doubt, from Koch's testimony I conclude that
Mullen had the duty of distributing and assigning work to the operators, and the
duty to see that the work was performed properly and in satisfactory quantity. It
also seems apparent that Mullen had authority to make effective recommendations
as to the discipline or discharge of unsatisfactory employees, and the reward of
increase in pay rates for satisfactory employees. Under those circumstances, I find
that Mullen had authority to "responsibly direct" the work of other employees and
that in consequence she is a supervisor within the meaning of the Act .3
The Inactivity of the Group Union; its Reactivation; the Meetings
in the Lunchroom
Theola Luster, one of the employees, was called as a witness by the General
Counsel. She testified that she was a member of the Group Union and on its
executive committee. She signed the contract on behalf of the Group Union,
September 30, 1960. Luster testified that from that date until the hearing was held
on August 14, 1962, in Case No. 21-RC-7890, the Group Union held no membership
meetings, but held some executive committee meetings. She also said that during
this period the Group Union had no constitution or bylaws, collected no dues, and
had no requirement for the payment of dues; had no treasury; and in a plant of
approximately 80 to 90 employees, during a 2-year period, had no grievances to
process.
3 See Ohio Power Company v . N.L.R.B., 176 F 2d 385 , 387 (C A . 6), cert denied 338
U.S. 899.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She testified that under the contract there was a grievance committee which was
composed of the executive committee of the Group Union. As first constituted, the
executive committee was composed of Luster, and employees Sally Sanders, Alex-
andrina Chouira, Dorothy Ward, and Ruby Owens. Sanders terminated her employ-
ment with the Company in 1961 and Chouira in March 1962. Luster said that no
one was either elected or appointed to take their places,
From all the evidence it is clear that shortly after the Union filed the rep-
resentation case, with which we are concerned here, on July 19, 1962, the Group
Union became more active. Production Manager Koch, who was called as a
witness by the General Counsel, testified that in early September 1962, the Group
Union requested permission from him to use the Company's lunchroom for
meetings and thereafter they held approximately four to six meetings. These
meetings were held during the lunchhour or after work on the employees' time.
The first meeting was announced over the Company's loudspeaker by an office
employee and the others were announced by notices posted on the Company's
bulletin board where notices to employees were usually posted.
Koch testified that the first of these meetings occurred in the first 2 weeks of
September at approximately the time that the Decision and Direction of Election in
Case No. 21-RC-7890 was issued (September 6, 1962). Koch said that Luster
invited him to address the employees at this meeting for the purpose of answering
some questions of employees arising from the Group Union-Company contract.
Koch said that at the appointed time he appeared in the lunchroom but the assembled
girls were so noisy that he had difficulty in hearing or answering their questions, so
he told them that if they had questions "to see him another time." Employee Luster
presided at this meeting and passed out some "Labor Board" literature, explaining
the rights of employees under the Act.
In the course of his examination, when asked if he ever spoke to employees on
whether they should vote for the Group Union or not, Koch replied, "Well, I didn't
specifically say one union or the other. I mean I am the employer. They can see
for themselves which way I lean. I mean I have a right to let them know not by
talking to them, but they can see my actions." When asked if any employee asked
him which union he preferred, Koch replied that he could not remember any such
occasion or question. He was then confronted with a statement which he had given
previously to a field examiner of the Board. He admitted that in the statement he
said, "I made no public or general announcement of which union I preferred, but
I have told employees who asked me that I preferred the Employees Group." 4
Koch denied that at the meeting he said that some of the employees were tearing
down what Luster was trying to build up.
Several employees also testified as to what occurred at this first meeting Employee
Sadie Zedd appeared to have the best recollection of what occurred at the meetings.
She testified credibly that the first meeting occurred on approximately September 17,
at the lunch period, 11:45 a.m. Julie, one of the office girls, announced over the
plant loudspeaker that there would be a meeting in the lunchroom at that time and
that Koch would be there to answer questions concerning the contract. At the
meeting, Theola Luster presided. Theola pointed out that they had never organized
into a group and she said that they should organize, elect a president and grievance
committee, and that Koch was there to answer any questions that the girls wanted
to ask. According to Zedd, several girls asked questions. Zedd herself asked, if
she wanted a raise in pay, to whom should she go, to Koch or to the committee.
Koch told her she should go to the committee. Employee Doss then asked if the
committee refused to act, then what. At that point, Koch said that they should
pay attention to what Theola Luster was saying, that she was trying to help them,
and it seemed as though some of the girls were trying to tear down what Luster was
building up for them.
Zedd testified that the second meeting was held in the lunchroom on the following
Friday, approximately September 21, at 4 p.m., quitting time. This meeting was
called by a notice posted on the timeclock. This meeting was conducted by em-
ployees Luster and Ward. It consisted of an election of officers. As each employee
entered the lunchroom, she was given a written ballot. Luster explained that the
employees were to vote for the officers of their choice by marking a circle around
the candidate's name, signing the ballot, and returning it to her. This ballot was
in the following form:
' Several witnesses, like Koch, referred to the Employees' Group Union as the "Employees
Group." The Trial Examiner has chosen to refer to this union as the Group Union, because
of the Board's decision holding this entity to be a union.
DOVE MANUFACTURING COMPANY 1385
Employers Group Committee
Secret Ballot
Officers.
A. President:
1. Mary Briley
2. Lombert V.
3. Lydia Mullen [in handwriting]
B. Vice-Pres.
1. Susie Lee
2. Hortense Baker
3. Edgar Fernando
C. Sec-Tres.
1. Gloria Lee
2. Maxine Hood
3. Alice Tillman
Please circle (one) from each Office.
It should be noted that these ballots have the title "Employers Group Committee,"
although the proper name of this labor organization is "Employees Group Union."
As to this election, it should also be noted that employee Mary E. Briley, who
was elected president of the Group Union at this meeting, testified that prior to
the election a group of employees, including herself, Luster, Moore, and some other
girls, acted as a nominating committee and made the nominations as listed on the
ballot. According to Briley, prior to the election, the names of the nominees were
posted on the employee bulletin board with the additional information that if any
employee wanted to make an additional nomination, she could do so by writing in
the name on the ballot. It was in that manner that Lydia Mullen became a candidate
for president. The notice concerning nominations was posted approximately 4 or 5
days before the date on which the election was held. Also, at the meeting, it was
announced that anyone could make additional nominations, but none were made.
According to Zedd, the third meeting of the employees occurred on approximately
October 18, which was approximately 2 weeks after the election by secret ballot
conducted by the Board on October 2. This meeting was also held in the lunchroom
at the lunch hour pursuant to a notice posted on the bulletin board. Mary Briley,
the newly elected president of the Group Union, presided. She said that it was
desirable for the employees to elect a grievance committee and a sergeant-at-arms.
She said that they needed such a committee so that the employees could air their
grievances to the committee. The employees had some discussion on the suggestion,
but took no action.
Zedd also said that a notice was posted for another meeting of the employees for
a date between February 11 and 16, 1963, but she did not attend this meeting
It is likewise worthy of note that a stipulation of the parties listed the present
officers of the Group Union as follows. Mary Briley, president; Edgar Fernando,
vice president; Hortense Baker, secretary-treasurer; Lydia Mullen, member of the
executive committee; Theola Luster, supervisor of the executive committee
The Answers to the Contract Questions
As stated previously, little was accomplished at the meeting at which Koch
undertook to answer questions concerning the Group Union-Company contract.
So on September 26 the Company issued to each employee a document which
purported to answer the purported questions of employees on various topics. In his
testimony, Koch stated that this document was prepared by Bernard B Laven, Esq.,
counsel for the Company, and that a copy of the document was attached to the
payroll envelope which each employee received on September 26. It is significant
that September 26 was a Wednesday, and the election was scheduled for the follow-
ing Tuesday, October 2. This document reads as follows. (General Counsel's
Exhibit No. 3.)
THE ANSWERS to the questions of several employees as to the benefits of
the contract between the Employees' Group Union and the Company are:
1. The representatives of the Employees' Group are elected by the
employees themselves
2 NO DEDUCTIONS OR COSTS FROM EMPLOYEES PAY: There
shall be no deductions or assessments or dues from the workers checks,
except for social security unemployment and withholding taxes.
3 NO STRIKES: There shall be no strikes nor picketing.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. VACATION PAY: All employees shall be entitled to one ( 1) week
vacation with average weekly straight time salary pay, who have been
,employed for one (1 ) year prior to July 1st of each year.
All employees who have worked three ( 3) years continuously beginning
with January 1 , 1960, shall be entitled to two (2 ) weeks vacation with
pay of individual average weekly straight time salary.
5. HOLIDAY PAY: Employees who have been employed continuously
since January 1, 1960, shall be paid for one (1 ) holiday, which shall be
Christmas Day, and for each succeeding year that said employee is in
continuous employment , and the agreement between the employees and
the company is in full force and effect , the employee shall receive pay for
an additional holiday until a total of five ( 5) holidays is reached.
6. BONUSES: All employees who have been employed for at least
ninety (90) days prior to Christmas Day shall receive two (2 %) percent
of his net take-home pay during each year or part thereof.
7. LOANS: The Company agrees to loan to all employees of the
Employees ' Group who have been employed for over one ( 1) year the
sum of Fifty ($50.00 ) Dollars, without interest , at any one time, which
shall be repaid at the rate of Ten ($ 10.00 ) Dollars per week, the first
payment to commence two (2 ) weeks after the loan is granted;
For all employees working less than one ( 1) year the company agrees
.to loan the sum of Twenty ($20.00 ) Dollars, without interest , at any one
time, which shall be repaid at the rate of Five ($ 5.00) Dollars per week,
the first payment to commence two (2) weeks after the loan is granted.
8. HOURS OF EMPLOYMENT AND OVERTIME. For all panty
operators and rufflers the working hours shall consist of 371/2 hours
straight time per week; the regular working hours shall be between 8:00
o'clock A M. and 4.00 o'clock P.M.;
The hours of all other employees shall be forty (40) hours straight time
per week; the regular working hours for such employees shall be between
8:00 o'clock A.M. and 4:30 o'clock P.M.
All hours worked in excess of the straight time per week shall be con-
sidered as overtime , and shall be compensated at the rate of ,time-and-one-
half the regular rate of pay.
9. GRIEVANCES. All grievances shall be determined by the Em-
ployees' Executive Committee and Company , and in the event of their
failure to agree, the said grievances shall be decided by American Arbi-
tration Board.
10. AVAILABILITY OF WORK. If there is not sufficient work for
piece workers during any one week and there is work available in another
-department , the piece workers may be shifted to said department
11. Music during the hours of employment.
12. COFFEE BREAK: The employees shall be entitled to a coffee
break of ten (10 ) minutes, commencing at 10.00 o'clock A.M., and at
'2:30 o'clock P M. of each working day . Free coffee available.
13. DISCHARGE OF EMPLOYEES: Employee can be discharged for
'good and sufficient reason only.
14. We also have a medical plan that you may join, if you wish, at a
minimum rate.
1963 VACATION________________
1963 PAID HOLIDAYS________________
On the last page of the above document, the Company indicated for each
employee the 1963 holiday and vacation time which had accrued to the employee
under the contract.
The document was in error to the extent that it attributed to the contract the
benefits of free coffee and a medical plan. These items are not covered in the
contract , and Koch testified that those two benefits had been granted to its employees
by the Company some years prior to the date on which the contract was executed.
Furthermore , the statement in the document that "the representatives of the Em-
ployees Group are elected by the employees themselves " is seriously questioned in
this proceeding.
The Display of Campaign Posters for the Group Union
Employees Zedd and Perkins both testified credibly that during the 3-week period
prior to the Board-conducted election, the Group Union posted some campaign
DOVE MANUFACTURING COMPANY 1387
posters in the Company's lunchroom. Koch testified that he observed these posters
and that he allowed them to remain posted. These posters were not introduced
into evidence, presumably having been destroyed after the Board-conducted election
on October 2. Zedd described the posters. She said that one stated: "Be wise and
organize with the Employees Group. An egg in the nest is better than a hen in
the bush tomorrow " Neither Zedd nor other employees could describe the second
poster except to the effect that it was similar in tenor.
The Activity of the Union
From all the evidence it is clear that from some time prior to the hearing on
August 14, up until the date of the election, October 2, the Union attempted to
organize the employees of the Company by passing out pamphlets, explaining the
benefits to be obtained by joining the Union, and by personal contact with the
employees. The pamphlets were passed out in front of the plant by organizers on
several days each week.
The meetings of employees in the lunchroom quickly became known to the repre-
sentatives of the Union, with the result that on September 12, 1962, John Ulene,
manager of the Union, addressed the following letter to the Company at its plant.
This letter reads as follows:
GENTLEMEN: Last week and this week, meetings have been held in the
luncheon room of the company at which the employees of the company have
been addressed by members of Management and by representatives of the so-
called Employees Group on the subject of Unionism and Labor Relations.
Demand is hereby made on you for equal opportunity to address the workers
at the same place on the same subject during next week Representatives of
the undersigned Union will be at your office shortly to seek to arrange for
such opportunity.
Very truly yours,
(S) John Ulene,
JOHN ULENE,
Manager.
This effort of the Union to obtain "equal opportunity to address the workers" was
productive of the sharpest conflict in the testimony of witnesses. Schwartz, a repre-
sentative of the Union, and Laven, counsel for the Company, had different versions
of conversations on this subject.
Schwartz testified that on September 14, he and a second organizer named Smith
went to the plant of the Company and spoke to Mark Gerry, its president. Schwartz
mentioned that the Union had sent a letter to the Company asking for permission
to speak to the employees, on nonworking time in the lunchroom, on the same
subject that the Group Union and management had addressed the employees. Gerry
said that he had received the letter and would take the matter up with his attorney
who would answer for the Company. About an hour later, Schwartz phoned Laven.
When Schwartz mentioned the letter, Laven said that he knew about it. Schwartz
then renewed his request. According to Schwartz, Laven replied that the Union
would have to get permission from the Group Union first. Schwartz then asked if
the Union obtained such permission would he then OK it. Laven said, "No."
Schwartz then asked why the Group Union could speak to the employees and the
Union couldn't. Laven replied, "We have a right to let them speak if we want to
but you can't." Schwartz told Laven that the Union would be compelled to file
charges against the Company. Laven told Schwartz that was his prerogative.
Schwartz also testified that on September 28 he went to the plant and asked Koch
if the Union could post some campaign posters in the lunchroom as the Group Union
had done. Koch said that Schwartz should consult Laven about this. Schwartz
returned to his office and phoned Laven. Schwartz told him of speaking to Koch
and asked for permission to post a campaign poster in the lunchroom as the Group
Union had done. Laven replied that he had instructed the Company not to interfere
in the election. Schwartz then said that the Group Union had a campaign poster
in the lunchroom and that the Union would like the same privilege. Laven replied
that the Group Union could post its poster but the Union could not. When Schwartz
insisted that the Union should have a similar right to post a placard, Laven replied
that if the Union did so, it would be trespassing. Schwartz again told Laven that
the Union would file unfair labor practice charges against the Company. Laven
again told Schwartz that decision was up to Schwartz.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laven in his testimony furnished a different version of the first telephone con-
versation. Reference in his testimony to a chart, means his daily work chart on
which Laven made notes and memorandums. Laven's testimony is as follows:
The WITNESS: On September 14th, sometime in the morning, the time is not
indicated on my chart of September 14, 1962, 1 received a telephone call from
Mr. Sam Schwartz.
The first thing he said to me, he said that, "I have talked to Mr. Gerry and
Mr. Gerry says it's O.K. for us to talk to the employees, but he said we have
to get your O.K."
I replied that I had a letter in my possession that had been sent over to me
from Mr. John Ulene, dated September 12, 1962, in which Mr. Ulene made a
demand for equal opportunity to address the workers at the same place on
the same subject.
I then replied that I had inquired as to what had taken place at that particular
meeting, and I was advised that Mr. Koch was called in by the employees to
explain some of the provisions of the contract.
I thereby said that I do not see how the union or any representative could
explain the terms of the contract; and, furthermore, that in view of the fact
that the employees had asked Mr. Koch to explain it that the request would
have to come from them.
I stated further that the employer, Gerry Manufacturing Company, had been
accused in the past of interfering and directing and dominating the Employees'
Group, and it was my advice that there should be no interference, that they
take no position whatsoever, and that it was up to the Employees' Group if
the Employees' Group requested it, that then it would be up to them and not up
to management to decide whether or not they would have equal time.
I also told them that as far as I was concerned that the request would have to
be made in the same manner to the Employees' Group, and I could not speak
for the Employees' Group; and therefore I could not grant the permission
because I had no authority to grant it. Neither did my client.
Mr. Schwartz made some statement to the effect that he would file a charge
with the National Labor Relations Board because of denial of equal time. I
stated that that was his privilege, that I couldn't do anything about it, but that
I had, from my interpretation and past experience, advised the employer to
have nothing to do with the Employees' Group in any way whatsoever unless
requested by them.
Laven said that this conversation on September 14 had nothing whatever to do with
requesting permission to post a campaign poster on the premises of the Company.
Laven also denied that he had any conversation with Schwartz on September 28,
in regard to campaign posters and that his daily office record, which showed all
important phone calls, showed that no such conversation with Schwartz had taken
place on that date.
In the course of his cross-examination, pursuant to the request Hof Laven, Schwartz
produced two handwritten memos which he testified were made within minutes of
each of the two telephone conversations. Laven, in his turn, produced records which
showed that he had a conversation with Schwartz on September 14, but had no entry
concerning a telephone call between Laven and Schwartz on September 28.
Conduct After the Election
The election conducted by the Regional Office of the Board on October 2 was, as
previously noted, inconclusive. The General Counsel contends that thereafter the
Company continued to act in an unlawful manner.
The Discharge of Employee Perkins
It is undisputed that employee Ozie Perkins was discharged by Production
Manager Koch on October 26. The General Counsel contends that Perkins was dis-
charged because she was a loyal adherent of, and had assisted, the Union, while it
is the claim of the Company that she was discharged because of tardiness, absentee-
ism, and insubordination.
It is undisputed that Perkins had worked for the Company for the past 10 years,
but the last 6 as an overlock operator in its lingerie department. At the time of
her discharge the Company employed between 12 and 15 overlock operators, all
paid on a piecework basis. Production Manager Koch testified that Perkins was one
of his best overlock operators.
DOVE MANUFACTURING COMPANY 1389
It is likewise undisputed that Perkins acted as the Union's observer at the Board-
conducted election in the year 1960 and she acted in the same capacity in the election
of October 2.
Perkins testified in a matter-of-fact and candid manner. She said that shortly
before the October 2 election a meeting was held in Koch's office at the plant to ar-
range details of the election. The Union was represented by Perkins, two union
organizers, Schwartz and Smith, and the Company was represented by a girl from
the office, Koch, and Mangel. During the preelection period, Perkins had tried to
assist the Union by talking to other employees during the lunch period and coffee
breaks.
The issue of the discharge of Perkins must be examined in the light of all the
testimony which shows the pattern of conduct of employees, and the pattern of
conduct of management in regard to these employees. In this analysis it must be
borne in mind that these were piece-rate workers who were paid only for the number
of garments upon which they performed their specific operations. In her testimony
Perkins said frankly that over the years of her employment she had worked such
hours as she pleased. The usual starting time for employees was 8 a.m. in the
morning with the regular quitting time at 4 p.m. The lunch period was from 11:45
a.m. to 12:15 p.m. and there were two coffee breaks of 10 minutes each, one at 10
a.m. and one at 2:30 p.m. The workweek was Monday through Friday. Perkins
testified that she came in late on an average of three or four mornings a week.
She stated that during 1961 and 1962 she was tardy on an average of three time a
week. During all of her employment neither Herrman nor anyone else in manage-
ment remonstrated with her or reprimanded her for this very frequent tardiness
until after the October 2 election. Perkins also testified that between January and
October 1962 she was absent about 6 days and was absent for a similar number
of days in 1961. From a period beginning in 1952 to 1961 she was absent not more
than 10 or 12 days each year. Sometimes she notified the Company by phone when
she was going to be absent for a day and sometimes she did not. Perkins said
that no one in management ever reprimanded her about being absent from the job
without notification to the Company until after the election of October 2.
Perkins testified that on the day after the election she arrived at the plant tardily
and at the timeclock she saw both Koch and Floorlady Herrman. Koch told Perkins,
"Work begins at 8 o'clock and not 8:15." Perkins punched in and went to work.
On October 26, Perkins had a conversation with Union Organizer Ralph Smith
during lunchtime in front of the Company's plant. At that time Koch passed by
and observed her in conversation with Smith. Later on the same day, Koch, in the
presence of Mangel, a salesman, told Perkins that she was discharged because (1)
she had been absent during the past 6 months without phoning in, and (2) that, as
a result of her absences, operators were waiting for work. Furthermore, she was
late 95 percent of the time, although this was not the reason for her discharge.
Oddly enough, much of Perkins' testimony found support in the testimony of
Production Manager Koch. Concerning the laxity of management in regard to
work hours and absenteeism and the change which subsequently was made, Koch
made quite a lengthy explanation. Koch testified that he had been in charge of
only a part of the Company's operations prior to April or March 1962. The
lingerie department, where Ozie Perkins was employed, was on a different floor
and not under his supervision. Prior to becoming production manager, Koch
had nothing to do with Perkins; Floorlady Herrman ran the lingerie department.
Koch said that the bouffant department under his management was well organized
but when he took over supervision of the whole plant, he was instructed that
top management expected him to get out production. When he took over the panty
operation, in which the overlock operators were employed, he found that things
were not running smoothly. There were several girls in the panty department,
who were late all the time, and they were taking days off that, he felt, they should
not take off. They were treated as "prima donnas"; so, after March or April
1962, once in a while he would tell them that "he would like to see them at work
by 8 o'clock" especially when they were very busy. One of the prima donnas was
Ozie Perkins.
When asked what he had had done to straighten out the lax situation of the
prima donnas, and what he had done about Ozie Perkins in particular, Koch
was vague and evasive. In reply to such questions he testified: "I talked to all of
them at one time or another as they came into work, that I'd like to see them in
at 8 o'clock. . In Ozie Perkins' case, I believe (I talked to) her sometime in
August when I was standing by the time clock. . . . I told her I would like to see
her in on time."
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At another point he said , "In June I could have told her [Perkins ] the same
thing." At another point in his testimony, Koch expressed the futility of his
efforts to cope with the general laxity of the employees. He said that though he
spoke to them , "it was like a broken record, and [he] was getting nowhere fast."
He explained that he could not fire a "whole section" of girls, and keep up production.
The entire tenor of Koch's testimony is to the effect that the laxity of employees in
the overlock operation as to tardiness and absenteeism was a habitual practice of
at least several employees.
According to Koch, in the middle of October 1962, he was standing near the
timeclock with Herrman and Mullen around 8:15 a.m. when Perkins came in.
He again told her he wanted her to be on the job by 8 o'clock and that if she didn't
come in at 8 o'clock he would take steps to dismiss her. Several weeks later he
checked the timecards again , and he found out that her record was the same way as
it had been in the past, and as far as he could see she was "very insubordinate to my
order." On October 26, he called Perkins into his office about 3:45 p.m. and he
told her that seeing she did not heed his warning, and was still coming in late,
and that she was being absent all the time, and that she was never calling in as to
why she was absent, that he would have to let her go. According to Koch, Perkins
looked at him and said , "That's fine." Koch said that Perkins had been absent just
a day or two prior to this date and that she had not called in.
On further examination , Koch said that he made the decision to discharge
Perkins on October 26 between 10 a.m. and noon. He discharged her because
she was being late to work, after he had told her not to be, and she was insubordinate
to the floorlady when the floorlady asked her why she didn't phone in when she was
absent. Koch said he thought her actions would rub off on the other employees.
Another factor was Perkins' record of absenteeism . Koch admitted that Perkins was.
"one of his best operators."
At another point in his examination, it is patent that Koch was not well informed
as to the promptness and attendance of the girls. When the Trial Examiner asked
about Perkins' tardiness and absenteeism, he said, "I didn't pry into the matter. It
was brought to my attention that-in October when she was out from work-when
she was out from work, that she would never phone in giving a reason why she was
out for that day." He admitted that up until October 1962 he paid no attention,
or didn't know, or at least he was not concerned, about Perkins' failure to phone in.
Koch also testified that the person who brought Perkins' failures, in tardiness and
in phoning in, to his attention was Floorlady Herrman
At another point in his testimony, Koch said that he fired Perkins because she
was insubordinate to Floorlady Herrman. On this point Floorlady Herrman testi-
fied. Herrman said that Perkins was absent on October 23, the day prior to the
Labor Day holiday and that Perkins did not phone in. When Perkins returned to
work on the next workday, Herrman asked why she was absent. Perkins replied
that her son was sick, and when Herrman asked, "Why didn't you call in?" Perkins
replied with a shrug of her shoulders. Herrman testified that she reported this
incident to Koch but made no recommendation to Koch to fire Perkins.
Perkins' version of this incident is different. Perkins said that she asked for the
entire week off prior to the Labor Day holiday. Herrman said that she could not
have the entire week off. Then Perkins replied that she would take a "long week-
end," to which Herrman made no reply. Perkins took one day off, prior to the
Labor Day holiday. When Perkins returned to work, Herrman asked her why she
had been absent, and she replied that her son was sick. Perkins said that was "not
a good enough reason" for her absence. Perkins then replied that "the reason was
good enough for her" and shrugged her shoulders.
The Bonus Bulletin to Employees
In his testimony, Koch admitted that on December 21, 1962, the Company dis-
tributed to each of its employees, with her annual bonus, a bulletin which read as
follows (General Counsel's Exhibit No. 6(a)):
EDRINE Doss: The management of DOVE MANUFACTURING CO.
wishes to extend to all their employees and their families a VERY MERRY
XMAS and a HAPPY NEW YEAR.
According to the provisions of the contract now in force with your EM-
PLOYEES' GROUP UNION, we are happy to enclose your bonus for $43.50
for the year 1962.
This is just one of the many benefits that is provided by the EMPLOYEES'
GROUP UNION contract and, which no other union can give to you , of which
is to your advantage . [Emphasis supplied.]
DOVE MANUFACTURING COMPANY 1391
Again we wish you a MERRY CHRISTMAS and looking forward to our
continued good relations for the coming year with the hope it will be a pros-
perous one.
We remain,
Sincerely,
DOVE MANUFACTURING CO.,
(S) Burton M. Koch,
BURTON KOCH & THE MANAGEMENT.
Koch also said that at Christmastime in 1961 the employees were merely given,
their bonus. No such bulletin was issued to them.
The above is a summary of the testimony of the principal witnesses in this pro-
ceeding on the controverted points. It is not intended to be an exhaustive analysis.
of all testimony and all exhibits. Reference to some testimony and some exhibits,
had to be omitted in the interest of brevity.
As to credibility, I may state, that as the summary discloses, there were few con-
flicts. Koch in his testimony patently attempted to support the position of the
Company and to put the most favorable light on his own conduct. However, though
evasive on some points, his testimony, especially that related above, I deem to be
reliable, since so much of it is in the nature of admissions contrary to the Company's
and his own self-interest. Floorlady Herrman and employees Perkins, Luster, Zedd,
and Doss all testified in a credible manner. I accept their testimony.
As to the conflict in testimony between Union Organizer Schwartz and Company
Counsel Laven, I credit the testimony of Schwartz. Both of these men are highly
interested in the issues of this case, and there is little reason to prefer one over the
other on the basis of demeanor and bearing on the witness stand. However, the.
testimony of Schwartz, as to the two critical telephone conversations, is supported,
by his memorandums made at the time. On the other hand, Laven's testimony is.
supported by a note on his work chart as to one conversation, and is supported by
the absence of any similar note as to the second conversation. To my mind this is
a crucial difference because the absence of a memorandum is at best weak evidence
that such a conversation did not occur. Even the most meticulous of busy lawyers
may, because of numerous types of distractions, forget to note an incoming phone
call, and the absence of such a note is not proof that the call was not received.
Furthermore, the tenor of Schwartz' testimony seems of a piece with the rest of-
the evidence; it seems to fit into the mosaic of the Company's conduct as I view
it, as set forth in the next section of this report . For those reasons, I accept the_
testimony of Schwartz.
Concluding Findings
Upon all the evidence I find that by its conduct from September 1 until approxi-_
mately December 30, 1962, the Company unlawfully interfered with the administra-
tion of, and unlawfully assisted, the Group Union, thereby violating Section 8(a)(2)
and (1) and unlawfully interfered with the fair conduct of the election held on,
October 2, 1962.
It is undisputed that prior to the filing of the Union's petition in Case No.
21-RC-7890, on July 19, 1962, the Group Union was moribund and to all practical
purposes defunct. Shortly after the Regional Director's direction of an election on
September 6, 1962, there were stirrings in this moribund union. The first sign of
activity mentioned in this transcript is that, pursuant to a request of the Group.
Union, Koch in early September agreed to attend a meeting of all employees in
the lunchroom for the purported purpose of answering questions of the employees
on the Group Union-Company contract. This meeting was announced over the
Company's loudspeaker system and subsequent meetings were announced by no-
tices posted on the Company's bulletin board. When this first meeting was held,
there was so much noise and confusion, according to the employees, that little was
accomplished. Thereafter, the sequence of events make it crystal clear that the
Company sought by subtle, but no less effective, means to influence the employees,
in favor of the Group Union and against the Union. That the Company's par-,
ticipation in the first meeting was not innocent was disclosed shortly thereafter by
the issuance of the Company's memorandum purporting to be the answers to the
questions of several employees regarding the Group Union-Company contract. This
document was prepared by the Company's counsel, and a copy of it was attached
to the pay envelope which each employee received on September 26, 1962. In this
proceeding the Company would have the Trial Examiner accept this document as
an innocuous explication of the terms of the Group Union-Company contract. This
the Trial Examiner cannot do, because the tenor of this document is that of campaign
material, setting forth all the advantages accruing to employees from the Company,
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At that time in the representation proceeding, the Group Union had a right to
electioneer and to campaign in a legal manner in an effort to influence employees
in its favor. But the Company had no such right; under the Act its duty was to re-
main strictly neutral between the two competing labor organizations. When it
issued this thinly disguised campaign pamphlet, prepared by the Company's attorney,
it undertook to influence the employees in a manner permitted only to the employees,
and to the two competing labor organizations. By that act, the Company intruded
into the election, a place where it had no business to be. That this document, pur-
ported to answer questions, was in reality campaign material, is conclusively estab-
lished by the fact that the document attributed to the Group Union-Company contract
two benefits, free coffee and group health insurance, not touched upon in the
contract, and which Koch testified had been granted to the employees at a time
antedating the contract. That the document was of company origin is not in dispute
for Koch testified it was prepared by Laven, company counsel, and his testimony in
that regard was not denied. Furthermore, the issuance of the document was timed
to achieve maximum effect; it was issued on the last payday before the election and
attached to employees' pay envelopes.
The second meeting of the employees purported to involve an election of officers
for the Group Union. As each employee entered the lunchroom, she was presented
with a list of candidates previously chosen by officers of the Group Union and a
few other employees, and the employees were asked to mark their selection for
members of "The Employers Committee " No mention was made of the pending
Board-conducted election, or of the right of those employees who might prefer
the Union to refrain from participating in electing "The Employers Committee."
The election was held and a slate of officers elected. This might appear to be
conduct in which the Company had no part. But analysis of the facts discloses that
the situation was quite otherwise. This so-called election was announced by bulle-
tins on the company bulletin boards and held in the company lunchroom. On the
slate of officers there appeared the name of Lydia Mullen, who finally became an
officer on the executive committee. Earlier in this report the Trial Examiner has
found that Mullen was and is a supervisor within the meaning of the Act.
Thereafter, additional meetings of the employees were held in the company lunch-
room, after announcements posted upon company bulletin boards. Later, campaign
posters advocating the election of the Group Union were posted in the lunchroom.
In his testimony, Production Manager Koch said that he was well aware of the
posted announcements and the posters, but he took no action to discontinue the
announcements or to take down the posters.
When the Union sought an equal opportunity to address the employees, as had
Koch, and an equal right to post campaign posters, as had the Group Union, its
request was refused by Laven, counsel for the Company. In his testimony, Laven
said that he had advised the Company not to interfere in the conduct of affairs by
the Group Union. However, when he was informed that Koch had addressed
employees on the subject of company-employee relations, he refused to permit a
similar address by union representatives on the flimsiest and most tenuous of grounds.
He refused the request of the Union on two grounds: (1) that the Group Union
had asked for the meeting and the explanation, and (2) that the Union was not in
a position to explain the Group Union-Company contract. Certainly Laven, who
prepared the answers to employees' questions, which narrated all benefits conferred
on employees by the Company, the issuance of which was imminent, must have
been fully aware that what the Union wished to explain to the employees was the
inadequacy of those benefits when compared with the benefits of employees of other
shops in the garment industry, who were represented by the Union. His refusal to
permit equal time to the Union in those circumstances appears to be a shallow pretext.
Laven, according to his testimony, never refused the Union the right to post
campaign posters in the lunchroom. However, according to Schwartz, Laven actu-
ally made such a refusal. As noted previously, I have credited Schwartz on this
point.
After the election, in transmitting the Christmas bonus to all employees, the
Company departed from its practice of the previous year and issued another bulletin
to employees pointed out that the Christmas bonus was the result of the Group
Union-Company contract. The clear meaning of the emphasized paragraph in that
document is that no other union could negotiate a bonus for the employees-which
is a most questionable statement, if not an outright misrepresentation.
Upon reviewing all of these events, I must conclude that the Company intruded
into the election at many points of the preelection period. In fact, there is only
one conclusion which can be drawn from this sequence of events, and that is that
the Company arrogated to itself, the right to conduct the Group Union's campaign
DOVE MANUFACTURING COMPANY 1393
against the Union amongst the employees. This record appears devoid of any
action which the Group Union took without company help to advance its own
cause in the election. The Company's unlawful interference and assistance to the
Group Union transformed the election into a contest between the Union and the
Company instead of a contest between two competing labor organizations, with the
Company a strict neutral on the sidelines.
It is the contention of the Company that its conduct, set forth above, was not in
violation of the Act but was a protected activity under Section 8(c) of the Act, the
so-called free speech section, and the United States Constitution. In the judgment
of the Trial Examiner, the Company's argument is untenable, because for many
years it has been settled law that an employer must maintain a "strictly neutral atti-
tude," when competing labor unions seek to organize his employees .5 The evidence
in this case establishes that the Company did not maintain the "strictly neutral atti-
tude" required by the statute, but in fact ousted the Group Union from control of its
campaign and thereby interfered with and restrained its employees. The contention
of the Company that its conduct constitutes nothing more than an expression of
"views, argument, or opinion," permissible under the Constitution of the United
States or under Section 8(c) of the Act, cannot be accepted. This same contention
was advanced and rejected in N.L.R.B. v. Kropp Forge Co., 178 F. 2d 822, 827-829
(C.A. 7), cert. denied 340 U.S. 810. In the latter case, after considering numerous
authorities under the amended as well as the original Act, the Court concluded that
"in determining whether such statements and expressions constitute, or are evidence
of an unfair labor practice, they must be considered in connection with the positions
of the parties, with the background and circumstances under which they are made,
and with the general conduct of the parties. If, when so considered, such statements
form a part of a general pattern or course of conduct which constitutes coercion
and deprives the employees of their free choice guaranteed by Section 7, such
statements must still be considered as a basis for a finding of unfair labor practice."
In this case the Company deliberately assumed control of the Group Union's conduct
in the representation campaign and at that point ventured beyond the point where
it was protected by either Section 8 (c) or the Constitution.
I also find that the discharge of Ozie Perkins constitutes a violation of Section
8(a)(3) of the Act. The Company's original position on this discharge was that
Perkins was discharged for cause: tardiness, absenteeism, and insubordination. As
Koch testified about the tardiness and absenteeism of all the prima donnas in the
overlock department and his inability to control the employees in that regard, he
transferred the emphasis of his complaint from Perkins' tardiness and absenteeism
to her insubordination. On that topic, on cross-examination Koch furnished two
different reasons for Perkins' discharge, first, that she was insubordinate to his order
to be on time, and second, that she was insubordinate to Floorlady Herrman. Koch
was not a convincing witness, for his testimony lacked the candor and sureness,
which is usually exhibited by a witness, who is convinced of the righteousness of his
own conduct or the propriety of his own decision. He admitted that he did nothing
in the nature of reprimanding Perkins until the middle of October, which would be
2 weeks after the election, when he warned her about tardiness. Perkins, on the
other hand, testified that Koch first spoke to her about tardiness on the morning
after the election; and that she was discharged on October 26. Upon all of the'
evidence on this point, and all other evidence disclosing the Company's manifest
purpose to favor the Group Union, and to keep the Union out of its plant, I find that
I have an abiding conviction that Ozie Perkins was not discharged because of her long-
condoned tardiness or absenteeism; nor for her alleged insubordination, which as
described by Koch, amounted to a failure by Perkins to be on time or a flip answer
and a shrug of her shoulders in her conversation with Floorlady Herrman. I find
that the alleged causes for Perkins' discharge are pretexts, and that Perkins was
discharged because she was the leading adherent of the Union among the employees,
and for that reason Koch sought to be rid of her.
For the reasons stated above, I find that the Respondent has committed the unfair
labor practices alleged in the complaint.
Findings on Objections to the Election of October 2
The Union's letter of October 4, 1962, filed with the Regional Office, enumerated
14 specific grounds of objection to the conduct of the election. I find that the
B See Harrison Sheet Steel Company v . N.L.R.B., 194 F. 2d 407 , 410 (C A. 7), and eases
cited therein
734-070-64-vol. 145-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence herein establishes some of the objections, but is insufficient to establish
others. The Trial Examiner finds that the following objections have been established
by the evidence and recommends that the election of October 2, 1962, be set aside
because of this conduct which rendered a fair election impossible.
Objection No. 3 is found. This objection reads as follows:
On the last payday immediately preceding the election, the Employer issued
to each employee, together with his pay check stubs, a pamphlet reciting the
alleged benefits of the alleged contract between the Employer and said Em-
ployees' Group.
Objection No. 4 is found in part. That part of the objection which is found, reads
as follows:
Immediately prior to the election herein, the Employer discriminated in favor
of and assisted the Employees' Group by permitting them to hold an election
on Company premises... .
Objection No. 4a is also found. It reads as follows:
That in order to coerce the employees to vote for said Employees' Group, said
Employees' Group was labeled "Employers' Group Committee."
Objection No. 6 is found. This objection reads as follows
At all times prior to the election, Employer refused to permit representatives
of the Los Angeles Dress and Sportswear Joint Board to speak to the em-
ployees during their non-working time while permitting representatives of the
Employees' Group to do so.
Objection No. 7 is found. This objection reads as follows:
Employer permitted the Employees' Group to post signs on Company premises
soliciting adherence while denying the Los Angeles Dress and Sportswear Joint
Board permission to post similar signs in its favor.
Objection No. 8 is found. This objection reads as follows:
Employer called meetings of the Employees' Group on Company premises
for the benefit of such Employees' Group.
It is hereby found that all other objections contained in the Union's letter of
October 4, 1962, are not supported by the evidence, and it is recommended that
such objections be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and constitute unfair labor practices which tend to lead to labor disputes
burdening and obstructing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (2), and (3) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent has assisted , contributed support to, and inter-
fered with Employees' Group Union and has interfered with the fair conduct of
the election of October 2, 1962, it is recommended that the Respondent withdraw
and withhold recognition from Employees ' Group Union and refram from recognizing
and dealing with it, unless and until the Employees' Group Union shall have
demonstrated its exclusive majority representative status pursuant to a Board-
conducted election among Respondent 's employees at its Los Angeles, California,
plant . It is also recommended that Respondent cease and desist from giving effect
to any contracts or agreements with the Employees' Group Union However,
the Respondent is not hereby required to vary the wages, hours, or other conditions
of employment heretofore established.
Having found that the Respondent has discriminated in regard to the tenure of
employment of Ozie Perkins , it shall be recommended that the Company offer to
her immediate and full reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other rights and privileges, and
DOVE MANUFACTURING COMPANY 1395
make her whole for any loss of pay she may have suffered by reason of the
discrimination against her by payment to her of a sum of money equal to that which
she would have earned as wages from the date of such discrimination to the date
of reinstatement, or a proper offer of reinstatement, as the case may be, less her
net earnings during such period; the backpay to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB
289, with interest as established and computed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the above findings of fact, and upon the entire record in the case, the Trial
Examiner makes the following:
CONCLUSIONS OF LAW
1. Mark J. Gerry, Inc., d/b/a Dove Manufacturing Company, herein called the
Company or the Respondent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Los Angeles Dress and Sportswear Joint Board, International Ladies' Garment
Workers' Union, AFL-CIO, and Employees' Group Union are labor organizations
within the meaning of Section 2 (5) of the Act.
3. By interfering with, and contributing unlawful paid, assistance, and support
to Employees' Group Union, the Company has violated Section 8(a) (2) of the
Act, and thereby interfered with the exercise of the rights guaranteed to its employees
by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act.
4. By discriminating in regard to the tenure of employment of its employees by
the discriminatory discharge of Ozie Perkins, the Company has violated Section
8(a)(3) of the Act.
5. By committing the unfair labor practices found above and by interfering in
the election of October 2, 1962, in the manner described above, the Company has
unlawfully interfered with the conduct of said election.
6. The unfair labor practices enumerated above are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law, and the entire
record in this case, it is recommended that the Respondent, Mark J. Gerry, Inc.,
d/b/a Dove Manufacturing Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Assisting, contributing support to, or interfering with the administration of
Employees' Group Union, or any other labor organization of the employees.
(b) Recognizing the Employees' Group Union as the representative of any of its
employees for the purpose of dealing with Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions of employ-
ment, unless and until said organization shall have demonstrated its exclusive
majority representative status pursuant to a Board-conducted election among the
Respondent's employees at its Los Angeles, California, plant.
(c) Giving effect to any and all contracts or agreements, supplements thereto,
or modifications thereof, or any superseding contracts with said organization, or
any successor, unless and until said organization shall have demonstrated its ex-
clusive majority representative status in a Board-conducted election among Re-
spondent's employees at its Los Angeles, California, plant.
(d) Discouraging membership in Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers' Union, AFL-CIO, or any other labor
organization of its employees, by discharging, or refusing to reinstate, or in any other
manner discriminating against employees in regard to their hire or tenure of em-
ployment, or any term or condition of employment.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the Los Angeles Dress and Sportswear Joint Board, International
Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all of such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Withdraw and withhold all recognition from Employees' Group Union as
the representative of any of the Respondent's employees for the purpose of dealing
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Respondent concerning grievances , labor disputes , wages, rates of pay, hours
of employment , or other conditions of employment , unless and until said organization
shall have demonstrated its exclusive majority representative status pursuant to a
Board-conducted election among the Respondent 's employees at its Los Angeles,
California, plant.
(b) Offer Ozie Perkins immediate and full reinstatement to her former or
substantially equivalent position , without prejudice to her seniority and other rights
and privileges , and make her whole for any loss of pay she may have suffered by
reason of the discrimination against her, in the manner set forth in the section of
this report entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Los Angeles , California , copies of the attached notice
marked "Appendix ." 6 Copies of said notice , to be furnished by the Regional
Director for the Twenty-first Region, shall, after being duly signed by the Company's
representative , be posted immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted . The Company shall take
reasonable steps that such notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Twenty-first Region , in writing, within
20 days from the date of receipt of this Intermediate Report , what steps the
Company has taken to comply herewith?
It is further recommend that , unless the Company shall within 20 days from the
date of receipt of this Intermediate Report notify said Regional Director , in writing,
that it will comply with the foregoing Recommended Order , the National Labor
Relations Board issue an order requiring the Company to take the action aforesaid.
6 In the event that this Recommended Order be adopted by the Board , the words "A Deci-
sion and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board ' s Order be enforced by a
decree of a United States Court of Appeals , the words "A Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision
and Order."
7In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT assist, contribute support to, or interfere with the administration
of the Employees' Group Union, or any other labor organization of our
employees.
WE WILL withdraw and withhold all recognition from Employees' Group
Union as the representative of any of our employees for the purpose of deal-
ing with us concerning grievances , labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment , unless and until said
organization shall have demonstrated its exclusive majority representative
status pursuant to a Board-conducted election among our employees at our
Los Angeles, California, plant.
WE WILL NOT give effect to any and all contracts and agreements , supple-
ments thereto, or modifications thereof, or any superseding contracts with the
Employees' Group Union or its successor , unless and until said organization shall
have demonstrated its exclusive majority representative status pursuant to a
Board-conducted election among our employees at our Los Angeles, California,
plant.
WE WILL NOT discourage membership in Los Angeles Dress and Sportswear
Joint Board, International Ladies' Garment Workers' Union, AFL-CIO, or
any other labor organization of our employees, by discharging, refusing to
DANIEL CONSTRUCTION COMPANY, INC. 1397
reinstate , or in any other manner discriminating against them in regard to their
hire or tenure of employment , or any term or condition of employment.
WE WILL offer Ozie Perkins immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to her seniority or other
rights and privileges previously enjoyed, and make her whole for any loss of
pay suffered by her as the result of our discrimination against her.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist both the labor organizations named above, or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining , or other mutual aid or protection, and to refrain from any
or all such activities.
All our employees are free to become or remain, or to refrain from becoming
or remaining , members of either Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers' Union, AFL-CIO, or Employees' Group
Union, or any other labor organization.
MARK J. GERRY, INC., d/b/a DOVE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway , Los Angeles, California, Telephone No. Richmond 9-4711, Extension
1031 , if they have any question concerning this notice or compliance with its
provisions.
Daniel Construction Company, Inc. and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO. Cases
Nos. 11-CA-1893 and 11-RC-1453. January 31, 1964
DECISION AND ORDER
On July 18, 1963, Trial Examiner George J. Bott issued his Inter-
mediate Report. and Report on Objections to Election in the above-
entitled proceeding, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action.
He recommended, further, that the election held on November 16,
1961, in Case No. 11-RC-1453 be set aside and a new election held,
as set forth in the attached Intermediate Report and Report on Ob-
jections to Election. Thereafter, the Charging Party, United As-
sociation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO, and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs.'
1 The Respondent filed a request for oral argument. We hereby deny the request because
in our opinion the record , exceptions , and briefs adequately set forth the issues and posi.
tions of the parties.
145 NLRB No. 130.